Regulatory environment for beauty supplements

Staying in has never looked so good! With more consumers focusing on self-care and their beauty regimens, the nutricosmetic space has continued to grow. A business-friendly decision in a class action litigation—combined with a seemingly low enforcement interest from regulators—points to the category growing even more.

“Nutricosmetics” and “beauty from within” are industry terms for dietary supplements promoted for uses that most associate with topical cosmetic products. Beauty store aisles now feature side by side both traditional cosmetics and beauty pills and gummies geared toward supporting thicker, stronger hair; glowing, clear skin; and the ever-elusive wrinkle reduction. Conventional foods are getting in on the action, too, with collagen-fortified foods becoming increasingly popular.

Legal status

Beauty supplements are uniquely positioned, as they arguably have a regulatory claims advantage over traditional topical cosmetics. While topical lotions and serums are limited to claims related to “beautifying” and improving appearance, the Federal Food, Drug and Cosmetic Act (FDCA) allows dietary supplements to claim they actually affect the structure or function of the body. This means a dietary supplement, if supported by adequate science, can claim to get rid of wrinkles themselves, as opposed to a topical serum that may only claim to reduce wrinkles’ appearance. Other examples are clearing up (non-cystic) acne and strengthening hair and nails. But supplements still cannot bear disease treatment or other drug claims, such as relieving psoriasis, dandruff or providing ultraviolet B (UVB) protection—sun protection factor or SPF.

Stagnant regulatory enforcement

With the ongoing pandemic, one could say regulators have been a little preoccupied on more important matters than products that claim to make people look better. Due to the priority of keeping false COVID-related claims and unsafe therapies out of the market, nutricosmetics do not seem to be at the top of the priority list. As such, enforcement action hasn’t been a focus as of late.

FDA sent a wave of warning letters in 2018 to companies marketing dietary supplements as providing sun-protection benefits, but since then, has been fairly quiet. FTC has taken action against a few beauty-from-within companies in the last few years, but these have been primarily focused on subscription and free-trial related issues, rather than product efficacy claims. Similarly, the National Advertising Division (NAD) appears to be occupied elsewhere and has not scrutinized beauty dietary supplements recently.

To read the rest of this article—including an update on class action lawsuits in the nutricosmetics space—click the link to the “Nutricosmetics radiate health from within” digital magazine and select “As the nutricosmetics category grows, so perhaps does the scrutiny” from the TOC.

Jennifer Adams is a partner at Amin Talati Wasserman, specializing in advertising and regulatory matters. Her practice focuses on defending cosmetic, food, dietary supplement, over-the-counter (OTC) drug, and animal food companies in challenges from FTC, FDA, state attorneys general and consumer class actions. Adams also advises on a wide variety of advertising issues, including claim compliance, substantiation and risk mitigation.